Press freedom in Malaysia – whither rule of law? — Anusha Arumugam

Today, World Press Freedom Day, was declared to raise awareness of the importance of freedom of the press and remind governments of their duty to respect and uphold the right to freedom of expression.

What follows is a snapshot glance at the treatment of the press in Malaysia over the past few four years.

April 2, 2018: Parliament passes an Anti-Fake News Bill. In response to why the urgent need for the passing of the bill, caretaker deputy minister for communications and multimedia Jailani Johari said, “The ministry has identified several news portals that are trying to revive the 1MDB issue. We believe that these efforts are by certain quarters who have a political agenda and are trying to damage the prime minister’s good name.”

March 21, 2017: Parliament speaker Pandikar Amin Mulia banned journalists from the Parliament’s lobby, preventing them from gaining direct access and impromptu interviews with members of Parliament. Reasons cited for the ban were to avoid misquotations and because MPs were uncomfortable with the practice.

Nov 9, 2016: Malaysiakini‘s office was raided by the Malaysian Communications and Multimedia Commission (MCMC). Amnesty International called the raid “an unwarranted attack, an insult to the freedom of expression in Malaysia, and the latest example of the crackdown on independent media in the country.”

March 3, 2016: Caretaker communications and multimedia minister Salleh Said Keruak said on his blog that that “freedom of speech is not an absolute right, but a privilege that can be withdrawn if abused”.

Feb 25, 2016: The Malaysian Communications and Multimedia Commission (MCMC), without identifying the offending publication(s), commenced action and subsequently banned The Malaysian Insider, a then leading online news portal, for allegedly publishing matters that have “caused confusion.”

July 2015: Whistle-blower website Sarawak Report was blocked for allegedly publishing unverified information relating to the prime minister. Other websites such as Medium, Outsyed the Box, Tabunginsider, Jinggo Photopages, Din Turtle, Asia Sentinel and Malaysia Chronicle were also blocked.

March 31, 2014: Caretaker minister of home affairs Ahmad Zahid Hamidi was posed the question as to why newspaper permit applications for FZ Daily, Malaysiakini and Suara Keadilan were rejected. He replied that the number of newspaper titles at the time were sufficient for the Malaysian population; to have more than that, he insisted, would mean an avalanche of news from various perspectives that would likely confuse the readers.

The above incidents are but a few of the numerous incidents in the last four years contributing to Malaysia’s regressive state of press freedom, culminating in the recent passing of the passing of the highly arbitrary Anti-Fake News Act.

Malaysia ranks 145th out of 180 countries in the 2018 World Press Freedom Index. The index assesses on criteria of independence and pluralism of the media, the transparent flow of information, legal frameworks and the safety and freedom of journalists.

Considering that the degree of freedom enjoyed by the press is but a yardstick in assessing how democratic a state is, what role does press freedom have in Malaysia’s constitutional democracy?

Free press – legally recognised

Owing to the direct participation by only a small minority in the decision-making process in a democracy, a free press is pivotal in facilitating the majority’s indirect participation (e.g. via voting, expressing their opinions, and making pressure groups).

A free press contributes towards the right of freedom of expression, thought and conscience, strengthening the accountability and responsiveness of governments to its population and providing a pluralist platform for a multiplicity of groups and interests.

To underline the critical role of a free press to a well-functioning democracy, when considering a case concerning The Times, the UK’s House of Lords held:

“The proper functioning of a modern participatory democracy requires that the media be free, active, professional and enquiring. For this reason, the courts, here and elsewhere, have recognised the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than is necessary to promote the legitimate object of the restriction.”

Therefore, without a free press, there cannot be full participation of the majority; without a free press, our democratic space shrinks. It was for this reason that Article 19 of the Universal Declaration of Human Rights was inked. As per Article 19:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

“It does indeed go without saying that so far as the freedom of press is concerned, it flows from the right to freedom of speech and expression as guaranteed by art 10(1)(a) of the Federal Constitution the exercise of which shall at all times be protected and respected but subject to and no more than the permissible restrictions as may be imposed by federal law with clear and unequivocal language pursuant to art 10(2)(a) thereof.”

Indeed, the guarantee of free speech under Article 10 is not absolute; it may be subject to restrictions by law. In fact, there are 14 restrictions on this right, making it the most restricted right in the Federal Constitution. This variation in the number of restrictions imposed on rights reflects Parliament’s gradation of civil and political rights.

Clearly, not all rights are afforded equal extent of unfettered enjoyment, and any lingering fallacy that rights are absolute may be dispelled.

Restrictions on press freedom were conceived to limit abuse by the press and to safeguard democratic values. Ironically, the very restrictions imposed to safeguard democratic values have, in turn, caused greater abuse by the state on press freedom.

This restricted free-flow of information impedes the full and effective participation of the majority in a democracy and traverses the aspiration in Utusan Melayu (M) Bhd v Dato’ Sri DiRaja Hj Adnan bin Hj Yaakob that:

“The public should have the right to discuss their government and public officials conducting public affairs of the government without fear of being called to account in the court for their expressions of opinion (City of Chicago v The Tribune Company).”

As press freedom stems from the freedom of speech, therefore laws that restrict press freedom would primarily fall under the penumbra of laws that restrict freedom of speech in Malaysia.

These laws have been identified as the Sedition Act 1948, the Communications and Multimedia Act 1998 (CMA), the Printing Presses and Publications Act 1984 (PPPA), the Official Secrets Act 1972 and the Evidence Act 1950. The Defamation Act, though not restrictive in nature, and not a cause of violation of the freedom of expression, is nonetheless acknowledged as a law that impinges on press freedom.

Latest reports on violations of the freedom of expression provide that, compared to previous years, there has been a restrained use of the Sedition Act by the government in 2016. But this restraint was not without several convictions and failed constitutional challenges.

When legislature, executive triumph

The critical role attached to press freedom in any democracy is paramount and cannot be discounted. Being the nexus between the majority and the decision-making minority, legal restrictions and limitations on the press should not overwhelm their right to freedom.

To do so would not only threaten the tenets of our democracy but also is a travesty of justice. Where liability lies with the legislature and the executive for impeding press freedom, from whom then can the press seek recourse? In an enlightening lecture, the late Sultan Azlan Shah said the following:

“In maintaining the balance between freedom of the press and the control of it by the executive, judges should not overlook their duty. It is, after all, to them that the citizen turns, to ensure that his rights are upheld. For this reason, the judges should always maintain their independence, to ensure that the rights of the individual are upheld. They should be bold enough to strike at and to declare unlawful any interference on the freedom of the press …”

The rule of law is the ultimate safeguard for freedom of speech and free press. Yet, Malaysia’s democratic space is shrinking, and with it press freedom.

It is unfortunate then if our freedom of speech cannot be protected by the rule of law, we Malaysians are left with no choice but to be compelled to rebel, as a last resort, against tyranny and oppression.

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